Divya K.N v. State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 ``` ## **`WP(C) NO. 4101 OF 2024`** ## **`PETITIONER(S):`** ``` DIVYA K.N AGED 38 YEARS, D/O. NARAYANAN, KAZHUTHUVEETTIL, MUDUR, VATTAMKULAM, MALAPPURAM DISTRICT -, PIN - 679578 ``` ``` BY ADVS. ``` ``` K.MOHANAKANNAN D.S.THUSHARA ``` ## **`RESPONDENT( S ) :`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, AGRICULTURE (NCA) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-, PIN - 695001`** - **`2 THE DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD -, PIN - 67800`** - **`3 THE SUB COLLECTOR, RDO OFFICE, OTTAPALAM, PALAKKAD DISTRICT -, PIN - 67910`** - **`4 REVENUE DIVISIONAL OFFICER, VIDYUT NAGAR, PALAKKAD, KERALA, PIN - 678001`** - **`5 PRINCIPAL AGRICULTURAL OFFICER KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, KERALA, PIN - 678013`** - **`6 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, ANAKKARA -, PIN - 679551`** - **`7 THE VILLAGE OFFICER ANAKKARA VILLAGE OFFICE, TRITHALA KUMBIDI ROAD, PATTAMBI, PALAKKAD DISTRICT - 679553`** ## **`BY ADV.`** ## **`SMT. AMMINIKUTTY, SR. GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.4101 OF 2024 ``` 2 ## **P.V.KUNHIKRISHNAN, J. ------------------------------------** **W.P.(C) No.4101 of 2024 ------------------------------------Dated this the 02[nd ] day of February, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: “i. To issue a writ of certiorari or appropriate Writ order or direction calling for records leading to Ext.P9 and quash the same; ii. To dispense with filing of the translation of vernacular documents; iii. To grant such other relief as this Hon’ble Court deem fit to grant in the interest of justice.” **==> picture [33 x 12] intentionally omitted <==** 2. This Writ Petition is filed seeking a direction to the 4[th] respondent to reconsider the order passed in 3 ``` WP(C) NO.4101 OF 2024 ``` Form 5 application under the Kerala Conservation of Paddy and Wet Land Rules, 2008 [for short, ‘the Rule, 2008’] and on the basis of the report of the Kerala State Remote Sensing and Environment Centre, Thiruvananthapuram [for short, ‘the KSREC’]. The petitioner is in possession and enjoyment of 0.0202 hectares of land in Sy. No.127/4/ of Anakkara Village, Pattambi Taluk in Palakkad District. The petitioner’s request for construction of a residential house was turned down by the authorities concerned. The petitioner submitted Ext.P6 application in Form 5 to correct the entry in the Data Bank. But, the same is rejected as per Ext.P9 order. Aggrieved by the same, this writ petition is filed. 3. Heard learned counsel appearing for the petitioner and the learned Government Pleader. 4. This Court perused Ext.P9 order. Ext.P9 is not a speaking order. Except relying on the report of 4 ``` WP(C) NO.4101 OF 2024 ``` the Agricultural Officer, the contention of the petitioner is not adverted while passing Ext.P9 order. In **Muraleedharan Nair v. Revenue Divisional Officer** [2023 (4) KLT 270], this Court observed that, it will not be sufficient for the Revenue Divisional Officer to dismiss the application simply stating that Local Level Monitoring Commitee has decided not to remove the land from the Data Bank. 5. The Revenue Divisional Officer, being the competent authority, has to independently assess the status of the land and come to a conclusion that, removal of the land from the Data Bank will adversely affect paddy cultivation in the land in question and nearby paddy lands or that, it will adversely affect sustenance of wetlands in the area and in the absence of such findings, the impugned order is unsustainable. 6. In **Aparna Sasi Menon v. Revenue Divisional Officer** [2023 (5) KLT 432], this Court ``` WP(C) NO.4101 OF 2024 ``` 5 observed that the predominant factor for consideration while considering Form 5 application should be whether the land which is sought to be excluded from the Data Bank is one where paddy cultivation is possible or feasible. 7. According to the petitioner, the impugned order is passed in violation of the provisions of the Kerala Conservation of Paddy and Wet Land Act, 2008. It is also submitted that the Revenue Divisional Officer has not applied his mind and simply accepted the report. It is also submitted that, it is mandatory on the part of the Revenue Divisional Officer to call for a report from the KSREC to ascertain the status of the land as on 12.08.2008 when the Act came into force. It is submitted that the status of the land as on 12.08.2008 can be ascertained only through a scientific process. 8. After going through the impugned order, I 6 ``` WP(C) NO.4101 OF 2024 ``` am of the considered opinion that, there is some force in the argument of the petitioner. The impugned order is not a speaking order. The contentions of the petitioner is not adverted by the 4[th] respondent while passing the order. Therefore, I am of the considered opinion that the impugned order is to be set aside. Therefore, this Writ Petition is disposed of with the following directions: a) Ext.P9 order is set aside. b) The 4[th] respondent is directed to reconsider Form 5 application submitted by the petitioner, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. c) The petitioner is free to submit an application before the appropriate authority for getting the KSREC report ``` WP(C) NO.4101 OF 2024 ``` 7 within two weeks from the date of receipt of a copy of this judgment and if such an application is filed, the authority concerned will do the needful to obtain the same, in accordance with law. d) The petitioner will produce the certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 4[th] respondent for compliance. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` WP(C) NO.4101 OF 2024 ``` 8 ## **`WP(C) 4101/2024`** ``` The word ‘4[th] respondent’ shown in the second last sentence of paragraph 8, Clauses (b) and (d) of the judgment dated 02.02.2024 in WP (C) No.4101/2024 is corrected and substituted as ‘3[rd] respondent’ as per order dated 06.03.2024 in I.A. 1/24 in WP(C) 4101/2024. ``` ``` Sd/- ``` ``` JOINT REGISTRAR ``` ``` WP(C) NO.4101 OF 2024 ``` 9 ## **`APPENDIX OF WP(C) 4101/2024`** ## `PETITIONER EXHIBITS` |`EXHIBIT P1`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`DOCUMENT`| |---|---| ||`NO.2291/2014, OF SRO, KUMARANELLUR,`| ||`DATE 6/12/2014`| |`EXHIBIT P2`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`POSSESSION`| ||`CERTIFICATE DATED 26-04-2023 ISSUED`| ||`BY THE VILLAGE OFFICER, ANAKKARA`| ||`VILLAGE OFFICE IN RESPECT OF THE`| ||`PROPERTY WHICH SHOWS THAT THE`| ||`PROPERTY IS A WET LAND`| |`EXHIBIT P3`|`TRUE COPY OF THE DATA BANK IN SURVEY`| ||`NO.127/4 OF ANAKKARA GRAMA PANCHAYAT`| |`EXHIBIT P4`|`TRUE COPY OF THE ORDER AKB/16/2016-17`| ||`THE AGRICULTURAL OFFICER REJECTION`| ||`THE REQUEST OF ISSUED BY THE`| ||`PETITIONER`| |`EXHIBIT P5`|`TRUE COPY OF THE PROCEEDINGS FILE`| ||`NO.DCPKD/4894/2018-C3 OF THE 2 ND`| ||`RESPONDENT DATED 8-1-2019`| |`EXHIBIT P6`|`TRUE COPY OF THE APPEAL DATED`| ||`8-2-2020 FILED BY THE PETITIONER`| ||`BEFORE THE GOVERNMENT`| |`EXHIBIT P7`|`TRUE COPY OF THE GOVERNMENT ORDER`| ||`GO(MS)`<br>`NO.257/2023/AGRI`<br>`DATED`| ||`16-3-2023`| |`EXHIBIT P8`|`TRUE COPY OF THE FORM 5 APPLICATION`| ||`FILED BY THE PETITIONER BEFORE THE`| ||`REVENUE DIVISIONAL OFFICER DATED`| ||`26-4-2023`| |`EXHIBIT P8(A)`|`TRUE COPY OF THE JUDGMENT OF THIS`| ``` WP(C) NO.4101 OF 2024 ``` 10 ``` HON'BLE COURT IN WP(C) NO. 16733/2023 DATED 25/05/2023 EXHIBIT P9TRUE COPY OF THE PROCEEDINGS OF THE SUBCOLLECTOR,OTTAPALAM,NO. 2404/2023 DATED 13/10/2023 ``` RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE